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Biden Judge Provides Deciding Vote to Reject EPA Rule Exempting Drilling and Other Temporary Operations from Air Pollution Regulation

News and Analysis
Biden Judge Provides Deciding Vote to Reject EPA Rule Exempting Drilling and Other Temporary Operations from Air Pollution Regulation

Judge Veronica Rossman, nominated by President Biden to the US Court of Appeals for the Tenth Circuit, cast the deciding vote in a 2-1 decision that vacated an EPA rule allowing Colorado to exempt oil drilling and other temporary operations from a regulation that requires an evaluation and a permit for industry actions that cause air pollution. The ruling in Center for Biological Diversity v EPA was issued in September 2023.


What did the EPA do that led to this decision? 

 In 2022, the federal Environmental Protection Agency (EPA) considered a Colorado plan for helping control ozone-related air pollution in the Denver area. The EPA had determined that the area did not meet federal air quality standards concerning ozone or smog, which required the state to submit for approval a plan to try to achieve those goals.

The Center for Biological Diversity, an environmental group, maintained that the Colorado plan violated federal air pollution law. One of its primary arguments was that the plan improperly excluded from evaluation and permit requirements all “temporary emissions” – pollution resulting from construction or drilling activities as opposed to “continuous operating emissions” from stationery sources like power plants. The Center was particularly concerned about industrial drilling and other methods for extracting oil and methane gas.  According to the Center, the result of the exclusion was “unlimited air pollution” from the oil and methane gas industry, which it characterized as “one of the biggest contributors to smog” in the state. The Center explained that in addition to damaging parks and recreational areas, such ozone pollution “is linked to human health problems like asthma” and “can cause premature death.”

The EPA nevertheless approved the Colorado plan, including the exclusion of “temporary emissions.” This was based on its interpretation of federal law as not including such emissions. The Center filed a petition for review of the EPA decision with the Tenth Circuit.


How did Judge Rossman and the Tenth Circuit Majority Rule and Why is it Important?                                                                     

Judge Rossman cast the deciding vote in a 2-1 ruling that vacated the EPA rule and sent it back for reconsideration because it had improperly excluded “temporary emissions.” In an opinion by Judge Nancy Moritz, who was appointed by President Obama, the majority carefully analyzed the Clean Air Act and implementing regulations. It recognized its obligation to defer to the agency’s reasonable interpretation in cases of genuine ambiguity under the Chevron doctrine. But it found no ambiguity since the relevant language “plainly does not include any express exception for temporary emissions.” Accordingly, it rejected the efforts of the agency to imply such an exception, finding that there is “no plausible reason for deference” in light of the clear lack of ambiguity.

The majority concluded that the agency was simply wrong to “exclude all temporary emissions.” Although rejecting other arguments by the Center, the court vacated the rule and sent the case back to the agency so that it could direct Colorado to submit a plan that did include pollution from temporary emissions, including harmful drilling.

The Tenth Circuit decision made possible by Judge Rossman’s deciding vote is important to health and environmental protection in Colorado. It also may have significant impact across the country. As the Center stated after the ruling, it now plans to “challenge other states, such as Texas, New Mexico, and Pennsylvania, which have similar loopholes in their air pollution rules.” The ruling also serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judge Rossman to our federal courts.